ex10-1.htm


    Exhibit 10.1

     

    FIRST
AMENDMENT

    


    THIS
FIRST AMENDMENT dated as of August 8, 2008 (this “Amendment”) amends
the Fourth Amended and Restated Credit Agreement dated as of December 28, 2007
(the “Credit
Agreement”) among Middleby Marshall Inc. (the “Company”), The
Middleby Corporation (the “Parent”), various
financial institutions (the “Lenders”) and Bank of
America, N.A., as administrative agent (in such capacity, the “Administrative
Agent”).  Capitalized terms used but not defined herein have
the meanings set forth in the Credit Agreement.

     

    WHEREAS,
the parties hereto desire to amend the Credit Agreement as more fully set forth
herein;

     

    NOW,
THEREFORE, the parties hereto agree as follows:

     

    SECTION 1  Amendments.  Subject
to the satisfaction of the conditions precedent set forth in Section 3, the Credit
Agreement is amended as set forth below.

     

    1.1          Addition of
Definitions.  The following new definitions are added to
Section 1.1 in proper alphabetical sequence:

     

    Computation Date -
see Section 2.3.9.

     

    Dollar Equivalent
means, at any time (i) with respect to any amount denominated in Dollars, such
amount, and (ii) with respect to any amount denominated in a currency other than
Dollars, the equivalent amount in Dollars as determined by the Administrative
Agent at such time on the basis of the Spot Rate for the purchase of Dollars
with such currency on the most recent Computation Date.

     

    Euro and € means the single
currency of the participating member states of the European Union.

     

    Spot Rate for a
currency means the rate quoted by the Administrative Agent as the spot rate for
the purchase by the Administrative Agent of such currency with another currency
through its Foreign Exchange Trading Center (or such other office of the
Administrative Agent or an affiliate thereof as the Administrative Agent may
select for any particular currency) at approximately 11:00 a.m. (Chicago time)
on the date two Business Days prior to the date as of which the foreign exchange
computation is made.

     

    1.2           Definition of Pro Forma
EBITDA.  The definition of Pro Forma EBITDA is amended by (a)
inserting the following proviso immediately after the semi-colon (and
immediately prior to the word “and”) at the end of clause (i):

     

    provided
that in the case of the proposed Acquisition disclosed to the Administrative
Agent prior to August 1, 2008, the historical net income of the target entity
shall be increased (to account for cost savings resulting from the closing of
(a) a division of the target entity and (b) the target entity’s headquarters, as
reflected in financial information delivered to the Lenders in connection with
the First Amendment to this Agreement) by an amount equal to 

     

    
      
        
        

      

      
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    the
product of (i) $24,000,000 multiplied by (ii) a fraction, the numerator of which
is the remainder of 365 minus the number of days that have elapsed since the
consummation of such Acquisition and the denominator of which is
365;

     

    and
(b) deleting the first parenthetical clause in clause (ii) (which currently
reads “(or division or similar business unit)”) and substituting the following
therefor:

     

    (or
division or similar business unit, but in any event excluding, to the extent any
aspect thereof may constitute a disposition, the items referred to in subclauses (a) and
(b) of the
proviso to clause
(i) above.

     

    1.3           Definition of Stated
Amount.  The definition of Stated Amount is amended in its
entirety to read as follows:

     

    Stated Amount means,
with respect to any Letter of Credit at any date of determination, the maximum
aggregate Dollar Equivalent amount available for drawing thereunder at any time
during the remaining term of such Letter of Credit under any and all
circumstances (including after giving effect to any increase therein that may be
required by the terms thereof), plus the aggregate Dollar Equivalent amount of
all unreimbursed payments and disbursements under such Letter of
Credit.

     

    1.4           Currencies of Letters of
Credit.  Section 2.1.2 is amended by (a) replacing the
reference to “$25,000,000” with “$50,000,000” and (b) adding the following two
sentences at the end thereof:

     

    Letters
of Credit may be issued in Dollars, Euros or any other currency that (i) is
freely traded in the interbank foreign exchange markets, (ii) is freely
convertible into Dollars and (iii) has been approved by the applicable Issuing
Lender and the Administrative Agent.  In the case of a Letter of
Credit not denominated in Dollars, the Company shall reimburse the Issuing
Lender in such other currency, unless (A) the Issuing Lender (at its option)
shall have specified in in writing that it will require reimbursement in Dollars
or (B) in the absence of any such requirement for reimbursement in Dollars, the
Company shall have notified the Issuing Lender promptly following receipt of the
notice of drawing that the Company will reimburse the Issuing Lender in
Dollars.

     

    1.5           Reimbursement
Obligations.  The second sentence of Section 2.3.3 is amended
in its entirety to read as follows:

     

    If
the Company fails to reimburse the Issuing Lender by the date and time specified
in the preceding sentence, then the Administrative Agent shall promptly (a)
determine the Dollar Equivalent amount of the unreimbursed drawing (the “Unreimbursed Amount”)
and (b) notify each Lender of such unreimbursed drawing and the Dollar
Equivalent amount of such Lender’s Percentage of such Unreimbursed
Amount.

     

    1.6           Funding by Lenders to
Issuing Lenders.  The text of Section 2.3.5 is amended in its
entirety to read as follows:

     

    
      
        
        

      

      
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    If
an Issuing Lender makes any payment or disbursement under any Letter of Credit
and such payment or disbursement is not reimbursed (by the making of Base Rate
Loans or otherwise) by the date and time specified in the first sentence of
Section 2.3.3)
or if any reimbursement received from the Company in respect of a payment or
reimbursement under any Letter of Credit is or must be returned or rescinded
upon or during any bankruptcy or reorganization of the Company or otherwise,
each other Lender shall be obligated to fund its participation in such Letter of
Credit by paying to the Administrative Agent for the account of such Issuing
Lender its pro rata share (according to its Percentage) of the Dollar Equivalent
amount of such payment or disbursement (but no such payment by any Lender shall
diminish the obligations of the Company under Section 2.3.3),
and upon notice from the applicable Issuing Lender, the Administrative Agent
shall promptly notify each other Lender of such obligation.  Each
other Lender irrevocably and unconditionally agrees to so pay to the
Administrative Agent in immediately available funds for the applicable Issuing
Lender’s account the Dollar Equivalent amount of such other Lender’s Percentage
of such payment or disbursement.  If and to the extent any Lender
shall not have made such amount available to the Administrative Agent by 2:00
P.M. on the Business Day on which such Lender receives notice from the
Administrative Agent of such payment or disbursement (it being understood that
any such notice received after noon on any Business Day shall be deemed to have
been received on the next following Business Day), such Lender agrees to pay
interest on such amount to the Administrative Agent for the applicable Issuing
Lender’s account forthwith on demand for each day from the date such amount was
to have been delivered to the Administrative Agent to the date such amount is
paid, at a rate per annum equal to (a) for the first three days after demand,
the Federal Funds Rate from time to time in effect and (b) thereafter, the Base
Rate from time to time in effect.  Any Lender’s failure to make
available to the Administrative Agent its Percentage of the Dollar Equivalent
amount of any such payment or disbursement shall not relieve any other Lender of
its obligation hereunder to make available to the Administrative Agent such
other Lender’s Percentage of the Dollar Equivalent amount of such payment, but
no Lender shall be responsible for the failure of any other Lender to make
available to the Administrative Agent such other Lender’s Percentage of the
Dollar Equivalent amount of any such payment or disbursement.

     

    Section
1.7            Prepayments.  Section
6.3 is amended in its entirety to read as follows:

     

     6.3           Prepayments.  

     

    6.3.1        Voluntary
Prepayments.  The Company may from time to time prepay Loans in
whole or in part, without premium or penalty; provided that the
Company shall give the Administrative Agent (which, in the case of Revolving
Loans, shall promptly advise each Lender) notice thereof not later than 10:00
A.M. (or, in the case of prepayment of Swing Line Loans, 12:00 noon) on the date
of such prepayment (which shall be a Business Day), specifying the Loans to be
prepaid and the date and amount of prepayment.

     

    
      
        
        

      

      
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    6.3.2         Mandatory
Prepayments.  If, on any Computation Date, the Administrative
Agent determines that the Total Outstandings exceed the Commitment Amount, then
(a) the Administrative Agent shall promptly notify the Company and (b) the
Company shall promptly upon receipt of such notice prepay Loans in an amount
(rounded upward, if necessary, to an integral multiple of $100,000) sufficient
to eliminate such excess.

     

    6.3.3        All
Prepayments.  Each partial prepayment of Revolving Loans shall
be in a principal amount of $500,000 or a higher integral multiple of $100,000;
provided that
if, as a result of the making of Base Rate Loans pursuant to Section 2.3.3 or
2.4.3, the
aggregate principal amount of all Revolving Loans is not at least $500,000
and/or is not an integral multiple of $100,000, then the next prepayment of
Revolving Loans shall be in an amount that causes the aggregate principal amount
of all Revolving Loans to be (a) either zero or at least $500,000 and (b) an
integral multiple of $100,000.  Each prepayment of Swing Line Loans
shall be in a principal amount of $100,000 or an integral multiple
thereof.  Any prepayment of a Eurodollar Loan on a day other than the
last day of an Interest Period therefor shall include interest on the principal
amount being repaid and shall be subject to Section 8.4.

     

    1.8           Additional Stock
Repurchases.  Clauses (vi) and (vii) of the proviso to Section
10.9 are deleted and replaced by the following:

    


    (vi)           so
long as no Event of Default or Unmatured Event of Default exists or will result
therefrom, (A) the Parent may declare cash dividends to its shareholders or
repurchase shares of its stock in an aggregate amount not exceeding, for any
Computation Period, 15% of EBITDA for such Computation Period and (B) the Parent
may make additional repurchases of shares of its stock in an aggregate amount
not exceeding, during the period from July 30, 2008 through the Termination
Date, $10,000,000; (vii) the Parent may pay cash dividends declared in
accordance with the foregoing clause (vi); and
(viii) the Company may pay dividends to the Parent to the extent necessary to
enable the Parent to pay dividends and repurchase shares to the extent permitted
by the foregoing clauses (vi) and
(vii).

    


     

    1.9           Addition of Section
2.3.9.  The
following Section 2.3.9 is added in appropriate numerical
sequence

     

    2.3.9        Non-Dollar Letters of
Credit; Currency Fluctuations.  The Issuing Lender will
determine the Dollar Equivalent of the Stated Amount of any Letter of Credit
denominated in a currency other than Dollars (i) on the date of the issuance or
renewal of such Letter of Credit; (ii) on the date of any change in the amount
available for drawing under such Letter of Credit; (iii) on the date of any
payment or disbursement under such Letter of Credit; (iv) as of the last
Business Day of each month; and (v) on any other date requested by the Issuing
Lender that issued such Letter of Credit or by the Administrative Agent (each
such date, a “Computation
Date”).

     

    
      
        
        

      

      
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    SECTION
2           Representations and
Warranties.  Each of the Parent and the Company represents and
warrants to the Administrative Agent and the Lenders that, immediately after the
effectiveness of the amendments set forth in Section 1 above, (a)
each warranty set forth in Section 9 of the Credit Agreement shall be true and
correct in all material respects as of the date of the execution and delivery of
this Amendment by the Parent and the Company, with the same effect as if made on
such date (except to the extent stated to relate to an earlier date, in which
case such representations and warranties shall be true and correct in all
material respects as of such earlier date), and (b) no Event of Default or
Unmatured Event of Default will exist.

     

    SECTION
3          Effectiveness.  The
amendments set forth in Section 1 shall
become effective as of the date hereof when the Administrative Agent has
received:

     

    (i)           counterparts
of this Amendment executed by the Parent, the Company, each Subsidiary of the
Company listed on the signature pages hereto and each Lender;

     

    (ii)           a
Confirmation, substantially in the form of Exhibit A, signed by
the Parent, the Company and each Subsidiary Guarantor;

     

    (iii)           a
certificate of the Secretary or an Assistant Secretary of each of the
Subsidiary Guarantors certifying the names of the officer or officers of such
entity authorized to sign the Confirmation, together with a sample of the true
signature of each such officer (it being understood that the Administrative
Agent and each Lender may conclusively rely on each such certificate until
formally advised by a like certificate of any changes therein).

     

    (iii)           all
amendment fees payable in connection with this Amendment as separately agreed to
in writing by the Company and the Administrative Agent.

     

    SECTION
4           Miscellaneous.

     

    4.1           Continuing Effectiveness,
etc.  As amended hereby, the Credit Agreement shall remain in
full force and effect and is hereby ratified and confirmed in all
respects.  After the effectiveness of this Amendment, all references
in the Credit Agreement and the other Loan Documents to “Credit Agreement” or
similar terms shall refer to the Credit Agreement as amended
hereby.

     

    4.2           Counterparts.  This
Amendment may be executed in any number of counterparts and by the different
parties on separate counterparts, (including by facsimile) and each such
counterpart shall be deemed to be an original but all such counterparts shall
together constitute one and the same Amendment.

     

    4.3           Governing
Law.  This Amendment and the rights and obligations of the
parties hereunder shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Illinois applicable to contracts made
and to be performed entirely within such State.

     

    4.4           Successors and
Assigns.  This Amendment shall be binding upon the Parent, the
Company, the Lenders and the Administrative Agent and their respective
successors and assigns, and shall inure to the benefit of the Parent, the
Company, the Lenders and the Administrative Agent and the respective successors
and assigns of the Lenders and the Administrative Agent.

     

    
      
        
        

      

      
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    Delivered
as of the day and year first above written.

     

    MIDDLEBY
MARSHALL INC.

    


    


    By  /s/ Martin M.
Lindsay                                      

    Title  Corporate
Treasurer

    


    


    THE
MIDDLEBY CORPORATION

    


    


    By  /s/ Martin M.
Lindsay                                      

    Title  Corporate
Treasurer

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    BANK
OF AMERICA, N.A., as Administrative Agent

    


    


    By  /s/ Suzanne M.
Paul                                          

    Title  Vice
President

    


    


    BANK
OF AMERICA, N.A., as an Issuing Lender,

    as
Swing Line Lender and as a Lender

    


    


    By  /s/ Craig W.
McGuire                                       

    Title  Senior
Vice President

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


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